By: John Austin Timberlake, CLASV Spring 2013 Student Advisor
The prospect of filing for divorce and process itself can be difficult in any marriage, and there are many challenges that couples must face and issues that neither thought of going into it. Military divorces have the potential to add further complications due to the unique circumstances of military life and the special regulations surrounding it.
It is important to recognize that there are differences between filing for divorce in a civilian marriage and in one in which one spouse is an active duty, reserve, or retired servicemember. While they are generally alike and involve substantially the same process, there are some different rules that govern such things as where you can file, child and spousal support, child custody, and pension/benefit divisions.
With this in mind, there are some things that are beneficial to know and be ready for going into a military divorce. The first and foremost among these is that you should be prepared for a long process. In addition to mandatory separation periods, discussed further below, filing for divorce in a military marriage can be delayed by deployments and other military-related requirements. If a spouse is still on active duty, any decrees must conform to the requirements of the SCRA. What follows are a few pieces of advice to prepare any servicemember or military spouse for some of the issues they can expect when filing for divorce…
Know where you can and wish to file for divorce:
Part and parcel of military life can be constant changes in location. As such, it is common for military couples to have been married in one state, live in another, and own property in yet another, be it from a previous duty station or perhaps where they intended to eventually settle. The consequence of this is that there are often multiple states where a military spouse can file for divorce. So long as one spouse can establish residency, there is jurisdiction to file in that state.
When making the decision where to file, it is important to take into consideration the laws of each state and how they might affect you. Different states have different rules regarding such things as division of benefits. Puerto Rico, for example, does not require the division of a servicemember’s benefits with his spouse upon divorce. Failing to investigate the divorce laws of each state can have adverse consequences on one party or the other when it comes to things like division of property, child/spousal support, and child custody.
Know the mandatory separation laws in the state where you intend to file:
Every state now has some form of no-fault divorce, but most states also have a mandatory period of separation before filing for no-fault divorce. The rules regarding this separation period differ from state to state. As such, it is important to determine exactly when physical separation commenced, as well as what counts towards the separation period. In Virginia, for example, the period where a spouse is on military deployment can count towards the separation period so long as there is bona fide intent by at least one of the spouses for the separation to be permanent. There are many important things to know depending on which state you are filing in, such as the length of time separated required before filing for divorce, whether a temporary reconciliation and/or briefly resuming cohabitation resets the clock, and what impact the existence of children has on the mandatory separation period.
If a spouse is active duty military, it is important to have an understanding of their intentions regarding their future in the military:
As stated earlier, if you are a military spouse, it is important to know whether your spouse will be active duty upon the time of filing, as that can affect when certain hearings could be held or decrees made. However, that is not the only decision by your spouse regarding their military future than impacts divorce settlements and awards.
Whether your spouse intends to complete the 20-year service time requisite for military retirement impacts separation bonuses, which need to be contemplated in any divorce settlement. Additionally, if your spouse intends to transfer to reserve status, you must look at how that will affect his/her pay and points towards retirement.
Be prepared to contemplate division of military pensions and benefits:
A common misconception regards spouse’s rights to a servicemember’s benefits after divorce. Military spouses are not automatically entitled to any SBP (Survivor Benefits Plan) as a beneficiary upon divorce. As such, any provisions for division of benefits must be addressed in a marital settlement agreement.
The computation of retired pay is an issue that is highly likely to become an issue in a military divorce. Unlike civilian divorces, where state law governs, military divorces must also follow the Uniformed Services Former Spouse’s Protection Act (USFSPA). Unfortunately, the USFSPA does not provide a formula to determine how much a spouse should receive of his/her spouse’s military pension. As stated earlier, different states have different rules governing the division of military pensions in divorce. However, the USFSPA stipulates that the state where the military member resides always holds the power to divide the military pension.
Rebekah Sanderlin, Military Divorce: Why Where You File Matters, http://www.military.com/spouse/relationships/military-divorce/military-divorce-where-you-file-matters.html
Marsha L. Thole, Military and Divorce, Divorce Source, http://www.divorcesource.com/ds/military/military-and-divorce-564.shtml
Divorce In Military Families – How It’s Different & What You Need To Know, Stateside Legal, http://statesidelegal.org/divorce-military-families-how-it-s-different-what-you-need-know
The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.